Alternative Dispute Resolution in Medical Malpractice Disputes

Alternative dispute resolution (ADR) is a category comprising various techniques which enable the parties to resolve their conflicts out of the highly formalized judicial proceedings. In many legal systems, ADR is an increasingly popular set of legal instruments to resolve disputes because of its cost-effectiveness and time-effectiveness, flexibility, confidentiality and respect for unique aspects of a particular case. While it is traditionally associated primarily with commercial arbitration on one hand and consumer disputes on the other hand, ADR has been introduced also to the area of medical malpractice disputes. With the growing numbers of these disputes as well as rising amounts of compensation in many Western countries, the use of ADR in health care context is only logical and its further increase can be expected. Many studies show not only that ADR methods such as early apology, mediation or arbitration are very rational from an economic perspective for the health care providers, but also that these techniques improve the patients', or their relatives', satisfaction. However, very serious questions may arise about the suitability and even legality of the use of ADR in medical malpractice cases given mainly its possible interference with the human right to access to justice. The paper first introduces the ADR, its particular techniques and their use in medical malpractice disputes. Benefits and disadvantages of ADR in medical malpractice disputes are then analysed with a special emphasis on its possible conflict with the human, and constitutionally protected, right to access to justice. The paper eventually assesses the conditions of suitability of ADR in the specific context of medical malpractice disputes